I amended my plan post confirmation. I served all creditors with the full plan and Motion to modify. I completed my affidavit of service and instead of also stating the plan was served with the motion, I said "all crediters were served with full copies of the motions with all exhibits" as I was considering the plan a motion to value and deem unsecured creditors paid in full.
The very next day I also decided to mail the secured creditor via certified mail of all the papers. I have the signed receipt but forgot to amend my affidavit of service.
At the confirmation hearing the Court asked directly "and no one objected to this?" I said no, the court than asked and "everybody was served?" yes. The Trustee recommended confirmation and did not raise issue with affidavit of service. The order confirming my plan states "after due notice and no objections the motion to confirm amended plan is Granted."
I started an adversary proceeding against the creditor back in 7/09. The creditor filed an Answer and there was no defense of not receiving the plan, that answer was deemed moot and after the attornies were substituted the new firm filed an answer in 9/09, again no defense of not receiving the plan. I amended my complaint with court approval. The amended complaint was deemed the operative complaint so all other answers were moot.
This time instead of an answer, there is a 12(6) motion to dismiss. Again no defense raised along these lines. The Defendant sited specific provisions of the plan and sited reasons my confirmed plan does not affect its lien, none of these reasons were for lack of service. The Defendant goes on to discuss the Instant Modification. The Defendant stated "Pursuant to the modification, it was to receive payments outside the plan directly from Plaintiff. Thus no objection was made by Wells Fargo and Plaintiffs motion to modify the Chapter 13 Plan was granted".
Apparently the complaint did not state I was seeking releif under 1327. After several discussion in court about the 1327 issue (no verbal objections or defense of not receiving the plan was raised at any hearing) the court directed me to point out how the plan layes a claim under 1327. Once the court found the complaint did state an "Espinosa" 1327 claim, he asked the defendant to provide a memorandum on why the should not be held to the plan and retro activity of Espinosa. On receipt of the Defendants "Suplimental Memorandum of Law" for the very first time the issue of not getting the plan is alleged.
I know the defense should have raised this along time ago but did not. Since I am Pro Se I do not file on PACER. Apparently when I file with the Court, at the request of the creditor, there is an electronic notice of docket activity. Since code and recent case law sayes only actual notice of the plan is required - does the PACER cover Actual Notice? Any case law?
Does anyone know the standard of overcoming this defense. I think its important the court realize service was proper. I am going to ask that the answers I provided to the court at confirmation would be considered an amendment of the Affidavit of Service.
What burns my but is only now, after all the arguments they made, describing with specifics plan provissions and why they do not apply, such as code protects mortgages, etc and failing to file an adversary hearing to value their lien.
There have been no explanations for failing to appeal the confirmation and now the time under all circumstances have lapsed to do so.
HELP any Suggestions? Can anyone point me to case law where the court denied this defense where the record showed they had the plan, admitted why they did not object to the confirmation and argue direct provissions of a plan they had no notice of? Please any help would be so appreacitive.
The very next day I also decided to mail the secured creditor via certified mail of all the papers. I have the signed receipt but forgot to amend my affidavit of service.
At the confirmation hearing the Court asked directly "and no one objected to this?" I said no, the court than asked and "everybody was served?" yes. The Trustee recommended confirmation and did not raise issue with affidavit of service. The order confirming my plan states "after due notice and no objections the motion to confirm amended plan is Granted."
I started an adversary proceeding against the creditor back in 7/09. The creditor filed an Answer and there was no defense of not receiving the plan, that answer was deemed moot and after the attornies were substituted the new firm filed an answer in 9/09, again no defense of not receiving the plan. I amended my complaint with court approval. The amended complaint was deemed the operative complaint so all other answers were moot.
This time instead of an answer, there is a 12(6) motion to dismiss. Again no defense raised along these lines. The Defendant sited specific provisions of the plan and sited reasons my confirmed plan does not affect its lien, none of these reasons were for lack of service. The Defendant goes on to discuss the Instant Modification. The Defendant stated "Pursuant to the modification, it was to receive payments outside the plan directly from Plaintiff. Thus no objection was made by Wells Fargo and Plaintiffs motion to modify the Chapter 13 Plan was granted".
Apparently the complaint did not state I was seeking releif under 1327. After several discussion in court about the 1327 issue (no verbal objections or defense of not receiving the plan was raised at any hearing) the court directed me to point out how the plan layes a claim under 1327. Once the court found the complaint did state an "Espinosa" 1327 claim, he asked the defendant to provide a memorandum on why the should not be held to the plan and retro activity of Espinosa. On receipt of the Defendants "Suplimental Memorandum of Law" for the very first time the issue of not getting the plan is alleged.
I know the defense should have raised this along time ago but did not. Since I am Pro Se I do not file on PACER. Apparently when I file with the Court, at the request of the creditor, there is an electronic notice of docket activity. Since code and recent case law sayes only actual notice of the plan is required - does the PACER cover Actual Notice? Any case law?
Does anyone know the standard of overcoming this defense. I think its important the court realize service was proper. I am going to ask that the answers I provided to the court at confirmation would be considered an amendment of the Affidavit of Service.
What burns my but is only now, after all the arguments they made, describing with specifics plan provissions and why they do not apply, such as code protects mortgages, etc and failing to file an adversary hearing to value their lien.
There have been no explanations for failing to appeal the confirmation and now the time under all circumstances have lapsed to do so.
HELP any Suggestions? Can anyone point me to case law where the court denied this defense where the record showed they had the plan, admitted why they did not object to the confirmation and argue direct provissions of a plan they had no notice of? Please any help would be so appreacitive.
Bankruptcy Wizard
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